Bhajan Lal vs Balbir

R.L. Anand, J.—This is defendant''s appeal and has been directed against the judgment and decree dated 3.4.1979 passed by the Court of Additional District Judge, Gurgaon, who affirmed the judgment and decree dated 24.7.1978 passed by the Court of Sub Judge Ist Class, Ballabgarh, who decreed the suit of the plaintiffrespondent by way of specific performance.

The pleadings of the parties can be summarised in the following manner:

Balbir son of Panni plaintiff entered into an agreement of sale of the land measuring 11 Bighas 13 Biswas fully described in the head note of the plaint for a sum of Rs. 16,500/ and paid a sum of Rs. 9,000/ by way of earnest money to the defendantappellant and it was agreed between the parties that the remaining consideration of Rs. 7,500/ shall be paid to the seller at the time of the registration of the sale deed which was to be executed by the defendant on or before 30.6.1974. It was also agreed upon between the parties vide agreement to sell dated 15.6.1973 that necessary expenses regarding the execution of the sale deed would be borne by the vendee and in case the defendants committed the breach of the terms of the agreement, the plaintiff would be at liberty to get the sale deed executed through Court of law and in case the plaintiff commits default for breach of the contract, his earnest money would be liable to be forfeited. The plaintiff alleges that in pursuance of the agreement he was put in physical possession of the suit land. He was always ready and willing to perform his part of the contract but the defendant Bhajan Lal failed to perform his part of the contract; so much so, the plaintiff served registered notice on 7.6.1974 calling upon the vendor to perform his part of the contract, but to no effect. On 28.6.1974, 29.6.1974 and 1.7.1974 the plaintiff went to the office of the Sub Registrar, Palwal, with the balance sale consideration. On 30.6.1974 the office of the Sub Registrar was closed on account of some public holiday. Defendant No. 1 Bhajan Lal did not turn up on these days to execute the sale deed in terms of the agreement to sell. Finally on 1.7.1974 defendant No. 1 refused to perform his part of the contract. Hence the suit for specific performance and in the alternative the plaintiff prayed for the recovery of Rs. 16,500/ with interest at the rate of 12 per cent per annum.

The suit was contested by the defendant who raised preliminary objection that the plaintiff had no locus standi to file the suit. He had no cause of action and the suit was not properly valued for the purpose of Courtfee and jurisdiction. The plaintiff had not come with clean hands and as such he was not entitled to the equitable relief of specific performance. On merits the stand of defendant No. 1 is that he did not execute any agreement to sell dated 15.6.1973, as alleged by the plaintiff. Rather an agreement dated 12.6.1972 was executed between him and the plaintiff for sale consideration of Rs. 21,500/ and under that agreement he received an earnest money of Rs. 4,000/ and the balance was to be paid to him at the time of the registration of the sale deed, i.e., on or before 15.6.1973, but the plaintiff failed to get the sale deed executed by the stipulated date, as he failed to perform his part of the contract and for that reason the earnest money of Rs. 4,000/ stood forfeited and the agreement to sell dated 12.6.1972 became inoperative. The defendant stated that he did not receive an earnest money of Rs. 9,000/ under the agreement dated 15.6.1973. The plaintiff might have succeeded in obtaining his thumb impression on the agreement (Ex.P.2) dated 15.6.1973 fraudulently and with the connivance of the petition writer Tulsi Dass on some pretext or the other. He pleaded that he came to know that the plaintiff in collusion with the said petition writer obtained and got written a false receipt of Rs. 14,000/ instead of Rs. 4,000/ only in the agreement to sell dated 12.6.1972. The said petition writer had admitted before the Revenue Officer that he did not scribe any agreement dated 15.6.1973. The defendant alleges that the plaintiff is a dishonest person. He was taken to the petition writer on 15.6.1973 on the pretext of extending the period of registration of the sale deed for another one month and the latter might have obtained his thumb impression on the document and its receipt in lieu of supplying copies of the entries of his register at his house with regard to the agreement dated 12.6.1972. The defendant also pleaded that agreement dated 15.6.1973 was not executed by him. the defendnat was not expected to sell the land at a lower price on 15.6.1973 when the prices are supposed to go high from the date of the first agreement dated 12.6.1972. The defendant also stated that he did not deliver the physical possession of the land in dispute to the plaintiff. Rather it is being cultivated by defendant No. 2 Khillu. The plaintiff was not ready and willing to perform his part of the contract dated 12.6.1972. Agreement dated 15.6.1973 has been interpolated and cannot be enforced. With the above pleas the defendant has prayed for the dismissal of the suit.

The plaintiff filed replication to the written statement, in which he reiterated his allegations made in the plaint by denying those of the written statement and from the above pleadings of the parties, the trial Court framed the following issues :

Whether the defendant entered into an agreement to sell the suit land with the plaintiff on 15.6.1973, as alleged ?

Whether the plaintiff was always ready to perform his part of the contract ?

Whether the plaintiff is entitled to specific performance of the said agreement ? If so, on which account and on what terms ?

If issue No. 3 is not proved, whether the plaintiff is entitled to recover any amount from the defendant allegedly given as earnest money ?

Whether the suit is valued properly for the purpose of court fee and jurisdiction ?

Whether defendant No. 2 is in possession of the suit land as tenant ? If so, its effect ?

Whether any agreement to sell took place on 12.6.1972 ? If so, what were the terms and conditions of the same in this suit ?

If issue No. 1 is proved, whether the said agreement of sale is forged and fraudulent ?

Whether the plaintiff is entitled to the possession of the suit land also ?

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, it was held by the trial Court that defendant No. 1 voluntarily executed agreement dated 15.6.1973. The plaintiff was always ready and willing to perform his part of the contract. The trial Court further held that the agreement between defendant No. 1 and defendant No. 2, if any, is not binding upon the plaintiff; that the earlier agreement dated 12.6.1972 stood expired and the parties were governed by agreement dated 15.6.1973. The trial Court also held that the agreement dated 15.6.1973 was not the result of any fraud, as alleged by the defendant. Finally, the suit of the plaintiff was decreed.

The defendants Nos. 1 and 2 namely, Bhajan Lal and Khillu, filed first appeal before the Court of Additional District Judge, Gurgaon, who vide the impugned judgment and decree dated 3.4.1979 dismissed the appeal and aggrieved by the said judgment and decree, the defendants have filed the present R.S.A.

I have heard Shri M.S. Jain, Sr. Advocate on behalf of the appellants, and Shri R.S. Mittal, Sr. Advocate, on behalf of the respondent, and with their assistance have gone thought the records of the case.

The first submission which was raised by the learned counsel for the appellants is that the impugned agreement (Ex. P.2) dated 15.6.1973 is surrounded by suspicious circumstances and the story put up by the plaintiff looks to be very odd and unreasonable. It is the common case of the parties that the earlier agreement dated 12.6.1972 was for a sum of Rs. 21,500/ and in these circumstances the agreement in dispute dated 15.6.1973 could not be for a sum of Rs. 16,500/. This part of the story of the plaintiff appears to be untrustworthy.

On the contrary, it was submitted by the learned counsel for the respondent that the earlier agreement fizzled out in the mouth of May 1973 and the second agreement came into existence on 15.6.1973. Since nobody was willing to purchase this land, the defendant approached the plaintiff again to purchase the land at a lesser price. Moreover the disputed land had been declared surplus and in that case it would be difficult for the defendant to sell the same. There was no other buyer. For this reason the consideration of the second sale deed was Rs. 16,500/ as against Rs. 21,500/, which was the consideration of the first agreement dated 12.6.1972.

I find sufficient force in the argument raised by the learned counsel for the respondent because the case set up by the defendant in the written statement is that the plaintiff tried to play fraud upon him with the help of his relation Ram Sarup and Tulsi Dass, the petition writer. In case the plaintiff wanted to play fraud upon the defendant, in that eventuality the plaintiff could easily incorporate the consideration in the second agreement more than Rs. 21,500/, but he has cogently explained in his statement that the first agreement dated 12.6.1972 could not be acted upon as it fizzled out. The defendant approached him for the sale of the land as the prices of the land by that time has gone down. The land was declared surplus in the hands of the defendant and it would have become difficult for him to sell the land. The plaintiff purchased the land on his own terms vide agreement (Ex. P.2) dated 15.6.1973 for a sum of Rs. 16,500/ and also paid a sum of Rs. 9,000/ by way of earnest money and this agreement (Ex.P.2) stands proved from the statement of the attesting witness as well as from the statement of Shri Harbans Lal, Handwriting Expert. The conduct of defendant No. 1 also shows that he did not raise a little finger agitating that any fraud had been played upon him by the plaintiff in connivance with the attesting witness and the scribe. The onus of proving fraud or undue influence, as alleged by the defendant in the written statement, was upon him and he was to discharge that onus by leading cogent evidence that the plaintiff had connived with the attesting witness or with the scribe, resulting in the execution of the agreement (Ex.P.2). Under these circumstances I repel the first argument raised by the leaned counsel for the appellants.

It was then submitted by Shri M.S. Jain, learned counsel for the appellants, that the execution of the agreement (Ex. P.2) has not been properly proved. Tulsi Dass, the alleged scribe of the agreement, has not signed on this document though his seal is there. Moreover, Tulsi Dass, petition writer, has not been examined by the plaintiff. The other attesting witness of this agreement was Balwan Singh, who has not been examined by the plaintiff. The only witness whose services have been pressed into by the plaintiff is Ram Sarup, who is none else but the brotherinlaw of the plaintiff. Moreover the stamp paper of the agreement (Ex. P.2) dated 15.6.1973 was also purchased by Balbir plaintiff himself. All these circumstances, if clubbed together, successfully establish that no due execution of the agreement dated 15.6.1973 has been proved. The second limb of the argument raised by the learned counsel for the appellants is without any force. It has been seen in experience that in such like transactions, like the transactions of the pronote, the vendee/creditor always takes the assistance of his educated relation for the purpose of attestation over the agreement/receipt so that in case of necessity his/her services could be pressed into. The point for determination is whether the defendant voluntarily executed the agreement dated 15.6.1973 (Ex.P.2). Once the theory of fraud as propounded by the defendant falls to the ground, the only conclusion which can be drawn by the Court with the help of the statements on record is that the agreement (Ex.P2) has been duly executed by the defendant. Perusal of the agreement would show that on this document which runs into two pages, the defendant has put his thumb impression not only at the conclusion of the writing but also on the front page. The plaintiff himself was a party to the agreement and he could equally purchase the document. The endorsement on the back of the stamp paper would show that it was purchased for the purpose of agreement. Also it has come in evidence that Tulsi Dass himself did not scribe the document. His apprentice, who was getting training from Tulsi Dass, was the scribe of the agreement and for that reason the signatures of Tulsi Das on Exhibit P.2 do not figure. Further it stands proved on the record that there were proceedings for the correction of Khasra Girdawri between the parties and defendant Bhajan Lal stated in his written reply in those proceedings on 4.6.1974 to the effect that the agreement dated 12.6.1972 had come to an end. Similar plea was taken by him in the written reply filed by him on 13.11.1973. Ram Sarup while appearing as P.W. 3 categorically stated that agreement (Ex.P.2) as executed by defendant No. 1. His mere relationship with the plaintiff is no ground to discard his statement nor it is any valid ground to hold that agreement (Ex.P.2) was not properly executed. According to the evidence on record the agreement was executed at about 3 p.m. Ram Sarup witness who was employed as a teacher in Government High School at village Ghagola categorically stated that he became free from the school at about 1 p.m., reached at Palwal at 3 p.m. when the document was scribed. Even the defence of the defendant in the written statement is that on 15.6.1973 he went to the city of the petition writer. He admits in the crossexamination that he thumb marked the stamp papers which have been written. He also admitted the presence of Balwan Singh. His stand is that on 15.6.1973 a sum of Rs. 4,000/ was paid by the plaintiff. If the defendant had not executed any agreement on 15.6.1973, what for he received a sum of Rs. 4,000/ from the plaintiff. Rather the receipt of this consideration would support the averments of the plaintiff when he stated that under agreement (Exhibit P.2), which was for a sum of Rs. 16,500/, Rs. 9,000/ was given to the defendant by way of earnest money. The defendant could approach the higher authorities or could file any criminal complaint against the plaintiff that he was coerced to execute any document or that any fraud had been played. His conduct in not doing so, goes a long way to establish that he voluntarily executed the agreement (Ex. P.2) in favour of the plaintiff and subsequently he wanted to back it out. The reasons for his backing out are quite obvious. It appears that the intentions of defendant No. 1 became bad and for that reason he entered into an agreement dated 16.6.1973 (Ex. DW. 7/1) with defendant No. 2, allegedly agreeing to lease out the land in favour of defendant No. 2 Khillu.

In the light of the above, I again hold that defendant No. 1 entered into an agreement to sell in favour of the plaintiff on his own free will and no fraud, as alleged by him, was played upon him by the plaintiff.

It was then submitted by the learned counsel for the appellants by taking support of Exhibit P.W. 9/A the previous statement made by the plaintiff before the Assistant Collector 1st Grade was casting a doubt about the execution of the agreement (Ex. P.2). Unfolding his submission, learned counsel for the appellants submitted that Tulsi Dass stated in those proceedings that he did not scribe the document (Exhibit P.2) and the statement of the plaintiff is contradictory to the one made in the present suit. I have already stated above firstly that there is no contradiction because Tulsi Dass himself is not the scribe of the document and for that reason his signatures do not find mention on Exhibit P.2. Secondly, the previous statement of Balbir plaintiff, if any, recorded in the revenue proceedings, was never put to him specifically and in these circumstances, no reliance can be placed on the previous statement of the witness, in view of citation reported as Sita Ram Babu Patil v. Ram Chander Nago Patil (dead) represented by his L.Rs. and another, AIR 1977 S.C. 1712. Incidentally this judgment was also relied upon by the learned first appellant Court in its judgment. In view of the settled position of law, it is difficult for me to hold that agreement (Ex. P.2) has not been executed by defendant No. 1.

From the record I am further satisfied that the plaintiff was ready and willing to perform his part of the contract at all material times. The record of the trial Court would show that the plaintiff approached the office of the Sub Registrar on 28.6.1974 and 29.6.1974. The record also shows that Bhajan Lal defendant appeared before the Sub Registrar on 29.6.1974 and submitted an application expressing his willingness to perform his part of the contract. If defendant Bhajan Lal had not executed the agreement dated 15.6.1973, what for he had gone to the office of the Sub Registrar on 29.6.1974. As per his own statement, the agreement dated 12.6.1972 had become redundant and inoperative. In order to prove his readiness and willingness, the plaintiff served notice (Ex. P.4) upon defendant No. 1 and this notice remained unreplied. The plaintiff also appeared before the office of the Sub Registrar on 1.7.1974. He also categorically stated that he was ready and willing to perform his part of the contract. Under the agreement dated 15.6.1973 a substantial amount of Rs. 9,000/ had already been paid to defendant No. 1, and the remaining consideration could be easily arranged by the plaintiff. In this view of the matter, I again hold that the plaintiff was always ready and willing to perform his part of the contract and defendant No. 1 committed the breach.

The last argument which was raised by the learned counsel for the appellants in the alternative was that the present case is the one where the decree for specific performance should not be passed. At the most the plaintiff should be granted a money decree for the amount allegedly paid to defendant No. 1. He submitted that relief of specific performance is a discretionary relief and the present case is a fit one where the alternative relief of money decree should be granted in favour of the plaintiff. I fully agree with the argument raised by the learned counsel for the appellants that relief of specific performance is discretionary, but the discretion has to be used by the law Courts in accordance with judicial principles. This discretion is not arbitrary but based on judicial pronouncements. The law of the land is well settled that in a transaction of immovable property, the decree for possession by way of specific performance should be invariably granted until or unless the agreement becomes unconscionable or it has created hardship for the person who was under duty bound to execute the agreement. The defendant in the present case has already lost the equity by denying the execution of the agreement. Defendant No. 1 had tried to create trouble for the plaintiff by executing agreement of lease in favour for defendant No. 2. He cannot be allowed to take the advantage of his own wrong. Even defendant No. 2 Khillu is bound by the decree because the transfer of any alleged interest in his favour was effected after the execution of the agreement dated 15.6.1973.

Resultantly, I am of the considered view that this appeal is devoid of any merit and the same is hereby dismissed with no order as to costs. The appellants are directed to execute a sale deed within one month from the date of passing of the judgment in favour of the respondentdecree holder, failing which the decree holder will be entitled to get the sale deed executed through Court of law. Of course, the registration expenses and other incidental charges shall be borne by the vendee.